Live from the Upper Midwest Employment Law Institute

I’m attending the two-day Upper Midwest Employment Law Institute in St. Paul this year. It’s a great program that attracts leading practitioners from all around the country. I have attended several times in years past, but this year I’m here because I need the continuing legal education credits (including Minnesota’s offensive get-your-mind right elimination-of-bias requirement) before June 30. The institute program draws a large audience which begins with plenary sessions for a couple of hours each morning followed up by breakout sessions in specialized areas.

It didn’t occur to me that anything of general interest might be happening here, but one of the speakers is NLRB acting general counsel Lafe Solomon. At the plenary session an hour ago Solomon addressed the legal limbo in which the NLRB now finds itself as a result of the D.C. Circuit’s ruling on the unconstitutionality of Obama’s recess appointments to the board. More generally, he described the board as under assault politically, legislatively and judicially.

Solomon reported that the Third Circuit issued a decision last week in harmony with the D.C. Circuit ruling. Solomon is optimistic that the Court will vindicate Obama’s recess appointments in the end, but the Court hasn’t yet taken the case and a ruling would not be issued before somewhere near the end of the Court’s term next year. (See this handy recess appointments litigation resource page for details and developments.)

Solomon conveyed a mournful angst and subliminal anger about the situation in which the board finds itself. Perhaps it is the bureaucratic equivalent of combat fatigue.

At the moment I am in a breakout session with Solomon in which he is providing an in-depth update on board issues. Despite his funereal affect in the plenary session this morning, he perked up when I asked if I could snap a photograph (above left) on my iPhone for this post, to which he graciously consented.